Animus on Display: Why Arkansas SB 202 Deserves a Veto

In response to the passage of SB 202 by the Arkansas legislature, the American Civil Liberties Union; ACLU of Arkansas; Gay & Lesbian Advocates & Defenders; Lambda Legal; and National Center for Lesbian Rights issued the following statement.

Last Tuesday, after a series of lightning-fast votes during just two weeks, the Arkansas legislature delivered SB 202 to Governor Asa Hutchinson’s desk. If it becomes law, this bill will preempt local nondiscrimination laws and policies that offer protections on any basis not yet included in state law.  The purpose of the law is to prevent any legal protections for lesbian, gay, bisexual and transgender (LGBT) people, and everyone knows this.  

SB 202 was passed to thwart cities like Fayetteville and Eureka Springs that recently have enacted sexual orientation and gender identity nondiscrimination protections. So if Governor Hutchinson allows this bill to take effect, it will amount to a giant, flashing “Gays Stay Away” sign. It will block sincere local efforts to show that Arkansas communities are welcoming places beckoning talent, innovation and workforce diversity. It will do precisely what Arizona’s Governor Brewer decided to avoid last year when she vetoed that state’s “discrimination as religion” bill.  

Governor Hutchinson has just until Monday, February 23rd to veto SB 202 and many Arkansans have been calling on him all week to do so.  As legal organizations working to end discrimination against LGBT people throughout America, we reinforce their call and explain why here.   

SB 202 is misleadingly called the "Intrastate 30 Commerce Improvement Act."  But make no mistake – this bill is not about alleviating drags on commerce within Arkansas, and no one truly thinks it is.  A bill with that goal might, for example, reduce the variation in municipal tax rates and other local rules that actually can bedevil businesses. But it’s not burdensome for businesses to treat gay and transgender people fairly. In fact, dozens of research studies have found again and again that ending discrimination, and supporting diversity, is good for business.  

So the real purpose isn’t helping businesses, it’s targeting LGBT people. This is obvious from the sponsors’ consistent and constant claims that this is needed because of an ordinance in Fayetteville that provided protections for LGBT people. And as in Arizona last year, the speed of the bill has meant the critiques are now coming in a wave after the legislature whizzed the bill through.   

Recalling Colorado’s fatally flawed Amendment 2, which years ago explicitly targeted lesbians, gay men and bisexuals (and not heterosexuals), many are asking whether SB 202 is a similarly unconstitutional denial of equal protection.  When the Supreme Court struck down Amendment 2 in Romer v. Evans, it underscored that the case record revealed anti-gay “animus” propelling the popular vote and no legitimate government reasons for precluding local nondiscrimination protections for LGBT people, and for no one else. The sponsors of SB 202 have used sweeping language that raises many legal questions but the bill amounts to a transparent attempt to hide from the courts the blatantly discriminatory reason why it was adopted.  This law and other unacceptable ones like it intentionally harm LGBT people and other minority group members.  When it can be shown that a law has been passed to facilitate discrimination, that showing creates a presumption that the law is unconstitutional.   There is nothing but discriminatory intent here.  And no valid public interest can possibly be served by allowing private businesses to discriminate based on sexual orientation, gender identity or other characteristics that might be covered by local ordinances. 

One of the legally and pragmatically wrong-headed things about this bill, which business and community leaders have been stressing to Governor Hutchinson, is that local governments are supposed to be independent “laboratories of experimentation.” Local control allows policies to be tested, with the good ones proving their worth and the bad ones failing. In many states where state-level nondiscrimination laws now protect LGBT people, those laws passed following local equal opportunity ordinances.  People in those communities saw for themselves that those local ordinances created no problems for businesses, but instead had positive impacts – expressing a welcoming, safe and responsible environment for everyone. SB 202 seeks to kill that time-tested process, aiming to make it that much harder to ensure fair treatment for LGBT people throughout the state.  

It is that manifest and dangerously discriminatory purpose that causes so many to call out the equal protection problem at the heart of SB 202.  Every lawmaker who voted for this bill has taken an oath to uphold both the Arkansas Constitution and the United States Constitution.  Both charters contain equal protection guarantees.  Governor Hutchinson has taken that oath as well.  He also has pledged to shepherd the State’s economy.  We call on him to honor both commitments by vetoing SB 202.